Fleming v. Burnham

• Decision Date: 06 October 1885
• Citation: 100 N.Y. 1,2 N.E. 905
• Parties: FLEMING and others v. BURNHAM and others.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 1

2 N.E. 905

FLEMING and others

v.BURNHAM and others.¹

Court of Appeals of New York.

Filed October 6, 1885.

Samuel Hand, for appellants, Elbert L. Burnham and others, Ex'rs, etc., of Myer Sternberger, deceased, purchaser.

M. C. Townsend and Alex. Thain, for respondents, Charles E. Fleming and others.

ANDREWS, J.

The serious objection made by the purchaser relates to the sufficiency of the deed of February 14, 1833, from Thomas McKie and Andrew Stark, described therein as executors of John McKie, to Gerardus De Forest, to pass title to the premises in question. It is conceded ceded that John McKie died seized in 1828. The answer made to the objection is twofold: First, that the deed was a valid execution of the power of sale vested in the executors of McKie by his will; and, second, that the five children of the testator took under the will a title in feesimple to the land, and that, conceding that the conveyance by the two executors was not a valid exercise of the power of sale, nevertheless the title of De Forest as to four-fifths of the premises was ratified and confirmed by the quitclaim of April 29, 1835, executed by all the children of the testator except his son William, and that the title to the share of William, who died in 1836, is barred by adverse possession. It is further claimed that it must be presumed that William received his proportion of the purchase money on the sale to De Forest, and that the acceptance by him of his share of the consideration operated as an estoppel, and precluded him, or those claiming under him, from questioning the validity of De Forest's title.

The sufficiency of the first answer, if true, needs no argument. But if the conveyance by the two executors was not a good execution of the power of sale contained in the will, the sufficiency of the second answer depends upon the correctness of the assumption on which it proceeds, viz., that under the will the five children of the testator took an absolute fee in the premises. If they took a fee-simple, the quitclaim of April 29, 1835, vested in De Forest a good title to four-fifths of the land, and, as to the one-fifth devised to the testator's son William, his title and that of his heirs is apparently barred by adverse possession. On the other hand, if, under the will, the children of the testator took only a base or qualified fee, determinable upon their death, leaving issue, or upon their death under 21 years of age without issue, and the fee, on the happening of the contingent event was given over to their issue, or to the brothers and sisters, as the case might be, then manifestly the quitclaim deed did not bar the right of the issue of the children, or cut off the ultimate fee given to them on the death of the parent. The deed might become the foundation for an adverse possession, as it purported to be a conveyance in fee, but in this way only could it affect their rights. But an adverse possession under the deed could not be deemed to commence, as against the ultimate devisees, until the determination of the precedent estate and the accruing of their absolute title in possession. For it is well settled that the statute does not commence to run against a person entitled after the determination of a prior estate during the continuance of that estate. Jackson v. Schoonmaker, 4 Johns. 390;Jackson v. Sellick, 8 Johns. 202;Jackson v. Johnson, 5 Cow. 74. Upon the assumption, therefore, that the issue of the children of the testator took, under the will, upon the death of the parents, respectively, an estate in fee, as purchasers, in the share of their parents, it is clear, upon the conceded fact that Thomas, one of the sons of the testator, lived until 1875, and that he died in that year, leaving issue, one of whom was an infant of the age of 10 years, that as against such issue no title by adverse possession had been acquired under the deed of April 29, 1835. There was no right of entry in the children of Thomas until his death. The deed conveyed his title to De Forest, whatever it was, with the right of possession during his life. His children could maintain no action to recover the premises until their right to the possession accrued. The questions therefore presented for consideration are,- First, as to the validity of the deed from the two acting executors, as an execution of the power of sale, and (in case it should be held invalid) the further question as to the quality of the estate devised by the will of John McKie to his children, and also the question of adverse possession.

It is material, in the first place, to consider the principle upon which objections to title on a judicial sale are to be treated and adjudicated. The purchaser is entitled to a marketable title, free from reasonable doubt. The purchaser bids on the assumption that there are no undisclosed defects. The purchaser pays and the seller receives a consideration regulated in view of the implied condition. Objections which are merely captious, or mere suggestions of defects which no reasonable man would consider, although within the range of possibility,or those which are clearly invalid by the law as settled, whatever doubts may at a former time have existed as to the questions raised, are not available to a purchaser, and will be disregarded. But the question presented to the court on an application to compel a purchaser on a judicial sale who raises objections to the title tendered, to complete the purchase, is not precisely the same as if it was raised in a direct proceeding between the very parties to the right. Where all the parties in interest are before the court, and the court has jurisdiction to decide, they are concluded by the judgment pronounced as long as it stands unreversed, however imperfectly the evidence or facts were presented or disclosed upon which the adjudication is made, or however doubtful the adjudication may have been in point of law. If the controversy involves a disputed...